GILLILAND v. ASTRUE, No. 1:2012cv02048 - Document 17 (D.D.C. 2014)
Court Description: MEMORANDUM OPINION to the Order granting Plaintiff's Motion for Judgment of Reversal and denying Defendant's Motion for Judgment of Affirmance. Signed by Judge Gladys Kessler on 9/15/14. (CL, )
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Frederick C. Gilliland, Plaintiff, v. Civil Action No. 12-02048 (GK) Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant. MEMORANDUM OPINION Frederick C. Gilliland ("Plaintiff" or "Gilliland") this action seeking judicial review of a Acting Commissioner ("Defendant" or of the the Social Security Act, pursuant 42 U.S.C. for disability insurance benefits Motion Motion matter for for is Judgment ( "DIB") Judgment Reversal of below, the [Dkt. record herein, Plaintiff's Motion for and Judgment Administration Section 205 (g) of denying his claim to Title II 401 et seq. Court No. 10] [Dkt. cross-motions, entire decision of the pursuant the Affirmance consideration of the parties' record, §§ presently before of to 405(g), § of the Social Security Act, 42 U.S.C. This Security Social "Commissioner") final brings for of on Plaintiff's and Defendant's No. 11] . Upon the administrative the reasons Reversal is stated hereby granted, and Defendant's Motion for Judgment of Affirmance is hereby denied. I . BACKGROUND A. On Procedural Background July 31, 1986, Plaintiff filed an application for disability insurance benefits ("DIB"), claiming that starting on April 13, 1985, headaches and fatigue Administrative Record ("AR") 22 [Dkt. No. 8] On Rowell November ("ALJ 23, 1988, Rowell") left an opinion disabled. 1 Administrative issued him Law Judge denying Russell Plaintiff's application. AR 21-25. On January 18, 1990, the Social Security Administration's ("SSA") intra-agency appeal. Appeal AR 33-34. Council denied Plaintiff did not Plaintiff's and was not required to bring an action in federal court at that time. In December of 1996, Plaintiff began working again, closing the period of alleged disability. AR 96, 139, 146. Accordingly, the period of alleged disability relevant to this matter covers April 13, 1985 to December 1, 1996. AR 14, 146. On February 7, the Middle District 2002, of the United States District Court for Pennsylvania settlement in the matter of Grant v. 1 approved Comm'r, a Soc. class action Sec. Admin., In January of 1986, Plaintiff, who is a Canadian citizen, began receiving Canada Pension Disability Benefits. AR 14. -2- 111 F. Supp. 2d 556 (M.D. Pa. 2000). AR 35-37. The class included "all applicants for Social Security disability benefits . who received an adverse decision from [ALJ] Russell Rowell on or after January 1, 1985." AR 35. As part of the settlement, the SSA agreed to provide each eligible class member with de novo review of his or her application by a different ALJ. AR 36. Defendant concluded that Plaintiff's DIB claim was eligible for de novo review under the Grant settlement and sent Plaintiff a letter informing him of his right to another hearing. AR 63-64. On December 14, 2 011, ALJ James Mangrum ( "ALJ Mangrum" or "the ALJ") held a hearing at which Plaintiff, his counsel, and a vocational expert were present. AR 233-58. On January 26, 2012, the ALJ denied Plaintiff's claim, ruling that Plaintiff had not shown that he was disabled during the period from April 13, 1985 through December 1, 1996. AR 1420. On October 23, 2013, the SSA's Appeal Council denied Plaintiff's request for review of ALJ Mangrum's decision.· AR 6 ("We found no reason under our Administrative Law Judge's decision. your request for review."). -3- rules Therefore, to review the we have denied On December 20, 2012, Plaintiff filed his Complaint challenging Defendant's denial of his claim for DIB pursuant to 42 U.S.C. § 405 (g). filed its Answer. filed a Motion September 30, [Dkt. [Dkt. for 2013, No. No. 1]. 7] Judgment 2013, Defendant 2013, Plaintiff On August 2, Reversal. of Defendant On June 3, [Dkt. filed a No. Motion for 10]. On Judgment of Affirmance and its Opposition to Plaintiff's Motion for Judgment of Reversal. Plaintiff [Dkt. filed No. his 11]. Finally, Opposition to on October Defendant's 16, 2013, Motion for Judgment of Affirmance and Response to Defendant's Opposition. [Dkt . No. 14] . B. At Factual Background the time Gilliland was Columbia, had 80 he filed years old Canada. AR 120; earned a General this and action, resided Pl.'s Compl. Equivalency journeyman steamfitter training, Plaintiff in [Dkt. Kamloops, No. Diploma, 1]. had Frederick British Plaintiff completed and had attended one year of college. AR 171. Before the onset of his headaches and fatigue, Plaintiff had worked as a pipefitter, pipefitter foreman, piping general foreman, 156-60. Most and recently, capital he project had superintendent. served supervisor in a pulp mill. AR 140, 156-60. -4- as a capital AR 140, projects Plaintiff was 52 years old disability began on April 13, returned to work, ending when the alleged period of 1985 and was 62 years old when he the alleged period of disability on December 1, 1996. AR 14-20, 146-47. In March debilitating 214-215. of 1985, headaches and Plaintiff severe fatigue. experience to started AR 14-19, 189-192, Despite the investment of significant time and medical resources, none of the physicians who Plaintiff saw were able to provide a diagnosis for his condition. Id. From February 19, hospitalized at 1986 until March 6, Foothills Hospital to identify the cause of his by extreme fatigue, retro-orbital in Calgary, myalgias accompanying a and Plaintiff, including Canada in order a left orbital and tugging at sense of left eye." AR 189-192. During that time, examined Plaintiff was "nonspecific illness characterized malaise, headache, 1986, the a number of physicians neurologist and an ear, nose, and throat specialist. Id. The doctors definitive report at diagnosis from follow [ed] a increasing in Foothills of Foothills Hospital Plaintiff's Hospital were unable condition. relates that daily pattern with gradual onset severity later in -5- the day. AR to reach a 189-192. "the The headache in late morning, [Plaintiff] did not seem to have a nocturnal headache. episodes of pain, all had several severe enough to require hospitalization for narcotics." AR 189. examinations, He ha[d] Plaintiff underwent a battery of tests and of which yielded "essentially unremarkable" results. AR 17-18. Dr. Mukherjee of Foothills Hospital did note, however, "some that focal during tenderness his examination in the left Plaintiff demonstrated, supraorbital region [.]" AR 190. Unable to determine the cause of Plaintiff's symptoms, the physicians at Foothills Hospital referred him to a pain management clinic. AR 191. 2 In addition to the specialists at Foothills Hospital, Plaintiff also met with his family physician, Dr. H.C. Muendel. AR 146, 206, in July of 214-215, 1985 "examination," 221. Plaintiff first visited Dr. and described the "treatment," reasons "diagnosis," for his Muendel visits as and "prescri[ption of] medication." AR 2 06. Although at one point, Plaintiff described his visits with Dr. Muendel as "irregular," AR 206, by June 10, 1987, Plaintiff was visiting Dr. Muendel an average of twice a month, AR 221. 2 The record contains mention of Epstein-Barr virus. AR 218, 234-58. Plaintiff brought up Epstein-Barr virus during his hearing and a letter written by a member of the Canadian Parliament asserts that Plaintiff had the virus. AR 18, 234-58. However, there is no evidence in the record that a physician ever diagnosed Plaintiff with that disease. AR 18-19. -6- Although many of Dr. Muendel's records were lost or destroyed when he relocated his practice, AR 146, Plaintiff was able to recover a The letter notes letter summarizing his findings, that Dr. Muendel was unable AR 214-15. to identify a "specific cause" of Plaintiff's intense, recurrent headache. Id. "However, it ha [d] been determined that [the headache] [was] related to the facial nerves over the left eye." Id. Dr. Muendel wrote, "[t] hat nerve has been anesthesiologist, Dr. Dhiel, injected by myself several times with dramatic relief of pain for a short period of time, of dulling of the pain." Id. and by the half an hour to four hours Near the end of his letter, Dr. Muendel added that " [s] ince the onset of this, at present time, incurable headache, [Plaintiff] has also become somewhat depressed." Id. Plaintiff's headaches severely affected nearly every aspect of his life. joint pain, [and] AR loss severe 235-58. of sleeping, memory, weakness." abated in December of He AR 1996, experienced inability 165. Until fatigue, to express Plaintiff's "headaches, [himself], condition Plaintiff spent much of his "required a big effort just to walk up a time flight of stairs[,]" and "spent his days in and out of consciousness." AR 17-20, 146-47. -7- Because of the passage of time between Plaintiff's submission of his DIB application in 1985 and his most hearing before ALJ Mangrum in 2011, many potentially medical records are absent from the record. AR 236-37. was able to government, Foothills unable recover several including Dr. Hospital. to recover AR any documents Muendel' s from 237-42. 32 the exhibits Plaintiff Canadian report from Defendant Unfortunately, of relevant the letter and the recent was appended to ALJ Rowell's 1988 decision. AR 239. c. Disability Deter.mination Process In order to qualify for disability insurance benefits, an individual must prove that she has a disability that renders her unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment" for a period of "not less than 12 months." 42 U.S.C. (d) ( 1) (A) . with The "[o]bjective medically impairment be support evidence" clinical u.s.c. 42 must must medical acceptable techniques." doing claimant severe § or her that claim is of enough to prevent In by diagnostic addition, the claimant from the either her previous work or any other work -8- & impairment "established laboratory 423 (d) (5) (A). 423 (a) (1) §§ commensurate with her age, education, and work experience that exists in the national economy. 42 U.S.C. § 423(d) (2) (A). The SSA whether a benefits. uses a five-step claimant 20 C.F.R. is § evaluation process disabled, and 404.1520(a) (1). thus, to determine qualified A clear determination of disability or non-disability at any step is definitive, process ends at that step. 20 C.F.R. In the first step, a and the 404.1520(a) (4). § claimant for is disqualified if she currently engaged in "substantial gainful activity." 20 C.F.R. is § 404.1520 (a) (4) (i). In the second step, not have a "severe a claimant is disqualified if she does medically determinable physical or mental impairment" that is proven "by medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. 404.1508 §§ & 404.1520 (a) (4) (ii). In the third step, a claimant qualifies for benefits if her impairment (s) C.F.R. part meet (s) 404, or equal (s) subpart P, an impairment appendix 1. listed 20 in 20 C.F.R. § 404.1520 (a) (4) (iii). Between the third and fourth steps, the SSA relies on the entire record to make a determination of the claimant's residual functional capacity ( "RFC"), which is -9- "the most [the claimant] can still do [the] despite limitations" impairment. 20 C.F.R. §§ 404.1520(a) (4) In the fourth step, shows that a claimant & created by the 404.1545(a) (1). is disqualified if her RFC she is still able to do her past relevant work. 20 C.F.R. § 404.1520(a) (4) (iv). In the fifth step, a claimant is disqualified if her RFC shows that she is capable of adapting to uother work that exists in the national economy." 20 C.F.R. §§ 404.1520(a) (4) (v) 404.1545 (a) (5) (ii) . If the claim survives these five steps, the claimant is determined to be disabled and & then qualifies for benefits . 2 0 C . F . R . § 4 0 4 . 15 2 0 (a) ( 4 ) (v) . This case centers on the second step of the five-step analysis. D. The ALJ's Ruling After the hearing on December 14, Plaintiff umet Security Act December 1, the insured status 2011, the ALJ found that requirements during the period from April 1996[,]" the alleged period of 13, of the 1985, disability. Social through AR 16. Continuing on to step one of the five-step disability evaluation process, the substantial ALJ concluded gainful that activity Plaintiff during disability.]" AR 16. -10- the udid not [alleged engage in period of At step two, the ALJ determined that, despite tests and examinations that Plaintiff underwent, medical signs or laboratory findings to the many "there were no substantiate the existence of a medically determinable impairment [.]" AR 17. He noted that "[a]lthough the record confirms that the claimant had experienced a host of neurological and symptoms fatigue beginning on the alleged onset date of March 1985, all of the claimant's workup from March 1985 through his hospitalization in February and March 1986 were [sic] essentially unremarkable." AR 18. The opinion emphasizes that none of the physicians Plaintiff consulted were able to arrive at a "formal di?-gnosis" or identify a "specific cause" of Plaintiff's symptoms. AR 17-18. Because failure at any step of the five-step evaluation process is fatal to a DIB claim, the ALJ did not proceed to step three. He concluded that Plaintiff "was not under a disability, as defined in the Social Security Act, 13, 1985, the alleged onset date, at any time from April through December 1, 1996[,]" and therefore, was not entitled to DIB. AR 20. II. STANDARD OF REVIEW Judicial review in Social Security disability limited by statute to determining whether the cases findings of the Commissioner are supported by substantial evidence. 42 U.S.C. -11- is § 405 (g); Butler v. Barnhart, 353 F.3d 992, Poulin v. Bowen, 817 F.2d 865, 870 evidence "means such relevant 999 (D.C. Cir. 2004); (D.C. Cir. 1987). Substantial evidence as a reasonable mind might accept as adequate to support a conclusion," Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted), requiring "more than a scintilla, but something less Fla. than a preponderance of the evidence[s]" Gas Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir. 2010). While record," the Court must "carefully 353 F.3d at Butler, evidence or supplant 999, the SSA' s it may not the Davis v. entire reweigh judgment on the weight evidence with its own judgment, 1193, 1195 scrutinize Heckler, of the the 566 F. Supp. (D.D.C. 1983). It must only review whether the ALJ's findings are based on substantial evidence and whether correctly applied the law. Butler, 353 F.3d at 999; th~ ALJ Davis v. Shalala, 862 F.Supp. 1, 4 (D.D.C. 1994). III. ANALYSIS A. Weight Given to Dr. Muendel's Opinion Plaintiff contends that the ALJ ( 1) provided "insupportable" reasons for rejecting Dr. Muendel's opinion, (2) failed to give Dr. Muendel' s opinion the "controlling weight" appropriate "treating physician," and for a -12- (3) failed to properly evaluate Dr. Muendel's medical opinion independently of the controlling weight analysis. Pl.'s Mot. at 3-6. Defendant argues that the ALJ correctly gave Dr. Muendel's opinion "little weight" because relationship" Dr. ( 1) with Muendel Plaintiff and lacked (2) other "treatment a evidence in the record contradicted Dr. Muendel's Opinion. Def.'s Opp'n at 6-9. 1. Treating Physician Rule Our Court of Appeals has made clear that " [b] ecause a claimant's treating physicians have great familiarity with [her] condition, their reports must be accorded substantial weight." Butler v. Barnhart, 353 F.3d 992, 1003 Williams v. treating unless "ALJ Shalala, physician's 997 F.2d 1494, report contradicted by 'who rejects 'is 1498 (D.C. binding on substantial the opinion of (D.C. Cir. 2004) evidence.'" a Cir. the Id. (quoting 1993)). "A fact-finder Thus, treating physician an [must] explain his [or her] reasons for doing so." Id. In addition, the SSA has issued regulations providing that so long as a treating physician's "opinion on the issue[] of the nature and severity supported by diagnostic techniques of [a medically acceptable and substantial evidence in claimant's] is not clinical inconsistent [a claimant's] -13- impairment[] is well- and laboratory with the other case record [,] " it will receive "controlling 416.927 (c) (2) weight." 20 C.F.R. Section 404.1527 (c) (2) makes clear that the SSA "will always give good reasons in [its] or decision for the weight 404.1527(c) (2), §§ [it] gives notice of determination [each claimant's] treating [physician's] opinion." a. The ALJ ALJ's Reasons for According "Little Weight" to Dr. Muendel's Opinion offered two reasons for giving Dr. Muendel's opinion "little weight." AR 19. He stated "[f] irst [that] no specific caused [sic] had been found to explain [Plaintiff's] symptoms," report, and there persistent "[s]econd, is no [that] evidence depression during contrary that the the to Dr. claimant period at Muendel's suffered issue." AR any 19. Neither of these reasons withstands scrutiny. First, as the Court discusses more fully below, the ALJ was wrong that a explain claimant must [his] symptoms [ . ] " demonstrate a "medically impairment," 42 U.S.C. anatomical, can be §§ physiological, shown by medically diagnostic show a techniques[,]" AR to "specific cause[] 19. determinable 423 (d) (1) (A), physical that only need Claimants or mental "result [s] from or psychological abnormalities which acceptable 20 C.F.R. clinical 404.1508. and laboratory There is no support for the ALJ's assumption that the opinion of a physician -14- who fails to identify a specific cause of symptoms should be accorded little weight. Nor is there contradict Dr. fact, was Dr. substantial Muendel' s opinion. evidence record to 353 F. 3d at 1003. Butler, in the In Muendel's inability "to find a definitive diagnosis" consistent [the] any with neurologist, the and opinions [the] ear, of the nose, "general physician, and throat specialist" in this case, all of whom had the same difficulty. AR 19. Second, "little the ALJ' s weight" decision to give Dr. because of the doctor's Muendel' s comment opinion regarding depression is baffling. Near the end of his June 20, 1986 letter discussing Plaintiff's condition, Dr. Muendel noted that "[s]ince the onset of this, at present time, incurable headache, [Plaintiff] has also become somewhat depressed." AR 215. The ALJ misinterpreted this brief, Plaintiff "suffered period at issue." offhand comment wrote. Dr. persistent AR 19. Muendel did as an opinion that depression during That is simply not what Dr. not opine that Plaintiff the Muendel suffered persistent depression. Nor did he suggest that depression caused Plaintiff's disability. The ALJ's interpretation of Dr. Muendel's comment and subsequent determination that the doctor's -15- opinion deserved "little weight" are not supported by substantial evidence. The ALJ was required to give 404.1527(c) (2), supported by "good reasons," evidence, substantial discounting Dr. Muendel's opinion, Butler v. 2 0 C. F. R. Barnhart, § before 353 F.3d 992, 999 (D.C. Cir. 2004). The reasons he gave fail to meet that test. b. Defendant Treatment Relationship responds that the ALJ was not required to give Dr. Muendel's opinion controlling weight because Dr. Muendel was not, in fact, Plaintiff's treating physician. Def.'s Mot. at 8- 9. The SSA's physician "has, "who regulations provides or has had, a that a claimant's own treatment or evaluation" and provide medical an ongoing treatment claimant is "treating "ongoing treatment source." relationship" 20 relationship" ·with the C.F.R. exists § when evidence establishes" that the claimant "see [s] , the source practice with for the a frequency type of consistent treatment for [her] medical condition." Id. -16- with 404.1502. the An "medical or ha [s] seen, accepted medical and/or evaluation required Evidence referred to physician, Dr. Muendel AR 146, 11 record shows as his Plaintiff "family doctor sought 206, that "treatment consistently or 11 "personal from him, 11 AR 206, and by June 10, 1987 visited him an average of twice a 214-215, month, in the AR 221. Yet, the ALJ failed to consider whether Dr. Muendel was a treating physician. Accordingly, there argument that Dr. are two problems with Defendant's Muendel was not a treating physician. First, there is little support in the record for that contention. Defendant's Motion, Defendant points out what is In clearly a mistake: On a lengthy form dated March 10, 1986, Plaintiff wrote that he first saw Dr. Muendel in July 1985 and that he last saw him in February Def.'s 1985. Mot. course, cannot be accurate. Mr. likely, he that February of Defendant should meant be to 1986, cites. write the AR foreclosed month 2 06. from at 8-9. Those dates, of Gilliland made a mistake. Most he last before Defendant's putting he saw Dr. completed argument- -that forth Dr. Muendel the in form Plaintiff Muendel as his treating physician because Plaintiff once provided an obviously incorrect date on a form sent to the Canadian government--is not persuasive. -17- Second, as Plaintiff correctly contends, the ALJ entirely failed to consider whether Dr. Muendel was Plaintiff's treating physician. The Court "must judge the propriety of determination] SEC v. on [the agency's solely by the grounds invoked by the agency [,]" Chenery 332 U.S. Defendant's at 196, post-hoc and therefore, justifications, cannot now rely Butler, 353 F.3d at 1002. c. 20 C.F.R. physician's acceptable order to Well-Supported by Medically Acceptable Clinical and Laboratory Diagnostic Techniques 404.1527(c)(2) § opinion clinical receive must and specifies "well-supported be laboratory controlling that diagnostic weight. The a by treating medically techniques" ALJ found that in the record did not contain evidence of "medical signs or laboratory findings to substantiate Plaintiff's claims of a medically determinable impairment"- -the ultimate issue at step two of the five step evaluation process. AR 19. One could read that broader conclusion to suggest that the ALJ believed Dr. Muendel's treatment of Plaintiff failed to involve clinical and laboratory diagnostic techniques. However, "[w]hile intuitive appeal, this interpretation may have some the ALJ did not articulate this view in his -18- decision [,]" as he must in order for this Court to rely on it. Butler, 353 F.3d at 1002 (citing Chenery Corp., 332 U.S. at 196) (declining to have accept interpreted" Commissioner's treating contention that physician's opinion that "ALJ must claimant "should never stoop to mean that she should stoop very little or only occasionally"). The ALJ never opined as to whether or not Dr. Muendel's opinion was supported by medically acceptable clinical and laboratory diagnostic techniques. Consequently, the record is bare. For the purposes of a considering a motion for judgment of reversal, reviewing court "it is sufficient that the ALJ did not say this and certainly did not explain it." Jones v. Astrue, 647 F.3d 350, 356 (D.C. Cir. 2011). d. Finally, physicians, Not Inconsistent with Substantial Evidence in the Claimant's Record both our Court of Appeals' rulings as well as the SSA's regulations, on treating permit an ALJ to discount medical opinions in conflict with substantial evidence in the record. Butler, 353 F.3d at 1003 ("A treating physician's report unless is binding on the substantial evidence."); physician's opinion requirements receives 20 fact-finder C.F.R. otherwise in controlling -19- § contradicted 404.1527 (c) (2) accordance weight if with "not by (Treating regulatory inconsistent with the other substantial evidence [claimant's] in case record. ") . Defendant examination argues and inconsistent that testing with Dr. "[t]he 'essentially results contained in Muendel's opinion that unremarkable' the record are Mr. Gilliland suffered from extreme limitations associated with a completely disabling impairment." Def.'s Opp'n at 9. This argument is unpersuasi ve. for The ALJ offered no support it he in his physician was opinion. able to Instead, reach a merely stated definitive diagnosis, laboratory results were essentially unremarkable, that that no all and that he, therefore, gave Dr. Muendel's opinion "little weight." AR 19. He did not explain why the treating physician's opinion should be given "little weight" just because other laboratory results were unremarkable and failed to lead to a diagnosis. Moreover, the it does not logically follow that merely because tests performed yielded Plaintiff did not suffer "essentially unremarkable results" "from extreme limitations associated with a completely disabling impairment." Def. 's Opp' n at 9. The doctors at management Foothills center Hospital in order referred to give -20- Plaintiff him some to relief a pain from his "blinding" headaches and fatigue even though they could not reach a specific diagnosis of his condition. AR 191, 254. Finally, Plaintiff,s facial Muendel 1 s "intense nerves with notes focal Dr. over most recurring the from the left headache" eye [,]" AR Foothills Hospital tenderness in [Plaintiff, s] finding--that specific was "related 214-15-- is that to the consistent "there [was] some left supraorbital region." AR 190. 2. Proper Weight for Medical Opinions not Deemed Controlling Plaintiff contends that entitled failing to to less than properly even if Dr. controlling assess it in applicable to all medical 'opinions. Muendel,s weight, line the with opinion was ALJ the erred by regulations Pl., s Mot. at 7-9. Plaintiff is correct. 20 must C.F.R. §§ 404.1527(c) sets out six factors consider when applying weight to any medical the examining relationship; (2) length, the treatment relationship; (3) supportability with relevant medical evidence; with the whole; source; record as (6) a (4) (5) nature, ALJs opinion: and of that extent the ( 1) of opinion consistency of the opinion specialization of the medical other factors that tend to support or contradict the medical opinion. The regulation provides that "[u]nless -21- [an ALJ] give [s] [she] a treating [will] weight source's consider . give[n] Plaintiff all of [these] factors in ¢ deciding I the [to] any medical opinion." Id. argues that decision that [ALJ' s] opinion controlling weight "there [he] is no indication considered any of these from factors the in his determination to give Dr. Muendel's medical opinion 'little weight.'" (emphasis Pl.'s Mot. at 8-9 in Notably, original) Defendant's brief does not address this argument. To be sure, the relevant give" 105 (D.D.C. to regulatory 2012) recite the relevant Id. ALJ given to In Dr. required to discuss each of when Paris v. deciding Astrue, added). each of case, the however, factors there Pursuant to the This he did not do. -22- 20 in the is no to 2d 100, written indication any of Commissioner's "give good reasons" opinion. Supp. to but does not require the consideration Muendel's weight regulation requires reasonable the ALJ must what F. 888 "[T] he certain factors, this gave not factors and discuss factors. regulations, [is] (emphasis 'consider' decision." that "ALJ a medical opinion. the ALJ to ALJ an C.F.R. the own "for the weight" § 404.1527(c) (2). B. Step Two: Severe Medically Deter.minable Impair.ment At step two of the five-step evaluation process, a claimant must show that she has a "severe medically determinable physical or mental impairment impairment." "must 20 result C.F.R. from 404.1520(a) (4) (ii). § anatomical, The physiological, or psychological abnormalities" and "must be established by medical evidence consisting of signs, symptoms, laboratory and findings." 20 C.F.R. 1508. "An individual's statement as to pain or other "[T] here symptoms" must medically be is not medical acceptable enough. signs 42 and clinical U.S.C. findings, or 423 (d) (5) (A). § established by diagnostic laboratory techniques, which show the existence of a medical impairment[,] [that] could reasonably be expected to produce the pain or other symptoms alleged [.]" Id. Because claimants experiencing pain cannot rely solely on subjective reports of their own symptoms, "[t]he applicable regulations prescribe a two-step process to determine whether a claimant suffers from symptoms (including pain) that affect her ability to perform basic work activities." Butler, 353 F.3d at 1004 "First, (citing claimant must evidencing a 20 C.F.R. adduce §§ 404.1529 'medical 'medically signs determinable -23- 416.929). & or laboratory' impairment the findings that could reasonably be expected to produce' second step focuses the alleged pain." on severity and Id. The "assesses the persistence and intensity of the claimant's pain as well as the extent to which it impairs her ability to work." Id. For clarity's sake, the Court notes that a claimant need not provide evidence of a specific medical diagnosis. At several points, the ALJ's opinion makes reference to the absence of a specific diagnosis symptoms. See, of the illness e.g., AR 19 giving rise to Plaintiff's ("[A] ll the results from March 1985 through his February 1986 hospitalization failed to establish a formal medically determinable AR diagnosis."); ("[T]he 19 current record contains no evidence of a medically determinable impairment. claimant Through had his undergone hospitalization an extensive in March workup and 1986, the had been evaluated by a number of specialists, none of whom were able to arrive at a formal diagnosis."). 42 U.S.C. 423 (d) (5) (A) speaks of "diagnostic techniques" that may establish a medically determinable impairment, but the statute does true of §404 .1508 the not require SSA's a particular diagnosis. implementing regulations. See The 20 same is C.F.R. (Impairments "must be established by medical evidence consisting of signs, symptoms, and laboratory findings[.]"); -24- 20 C. F. R. §4 04. 152 8 ("Signs must be shown by medically acceptable clinical diagnostic techniques. . Laboratory findings . can be shown by use of [the same].") To failed the at extent step the ALJ for lack two determined of a that Plaintiff's specific medical claim diagnosis, that determination was error. 1. Medically Deter.minable Impair.ment Demonstrated by Medical Signs or Laboratory Findings Plaintiff had the burden of putting forth "medical signs or laboratory impairment alleged marks that He letter. Plaintiff's verifiable signs time, 214]), ('That reasonably be Butler, omitted). a evidencing could pain." Muendel' s that findings expected 353 F.3d at contends that he Plaintiff chronic argues headache determinable medically 1004 met that to produce (internal this "Dr. condition [his] quotation burden with Dr. Muendel was detailed confirmed by ('dramatic relief of pain for a short period of half an hour to four hours of dulling of the pain[,]' [AR using medically acceptable clinical diagnostic techniques nerve had anesthesiologist, Dr. been injected Dhiel, with [AR 214])." Pl.'s Mot. at 11. -25- by myself dramatic relief and of by the pain [,] ' Defendant contends that Dr. Muendel' s injection technique failed to produce medical signs or laboratory findings because he relied on "Mr. Gilliland's statements regarding relief from pain." Def.'s Opp'n at 12. Defendant notes that symptoms, which are a claimant's impairment," "own description of 20 C.F.R. 404.1528, § [her] physical or mental are insufficient to show a medically determinable impairment. Def.'s Opp'n at 11. However, there is no record evidence as to whether Dr. Muendel based his observation of "dramatic on Plaintiff's Manual System acknowledges sharp distinction relief of pain" statements or on some other observed phenomenon. The SSA's that '"[i]n [medical] Program clinical Operations practice, signs and symptoms Operations Manual System and Laboratory Findings sometimes "necessary to make cannot (POMS) always be between found." Program DI 24501.020 Symptoms, (S.S.A. August 9, to laboratory findings[,]" a distinguish Because it is 2012) symptoms Signs, from signs and the Manual offers suggestions as to how that distinction. Id. Of particular relevance to this case, "signs can be observed by the clinician or can be elicited in response to "[T]hey. require a stimulus professional or action skill -26- by and the clinician." judgment to Id. evaluate their presence and severity as opposed to the mere noting and reporting of an individual's statements." Id. The ALJ completely failed to discuss whether Dr. Muendel's injection technique produced the medical findings to necessary impairment. The Court demonstrate is left mistakenly disregarded Dr. short of whether a the diagnosis, ALJ a to believed, determinable whether the ALJ technique because it fell discussion as and laboratory medically speculate Muendel' s see signs supra. Defendant now pp. 24-25, or argues, that any results produced by the injections were dependent on Plaintiff's subjective reports of pain. point was assigned error. review indication not "The of failure judiciary function, only The ALJ' s can limited though what evidence to address this scarcely was it is, perform without credited, but its some also whether other evidence was rejected rather than simply ignored." Butler, 353 F.3d at 1002 (quoting Brown v. Bowen, 794 F.2d 703, 708 (D.C. Cir. 1986) . 3 3 Plaintiff also contends that the ALJ should have applied the SSA's most recent guidance regarding the evaluation of migraine headaches. Pl.'s Mot. at 9-10 (citing Social Security Administration, National Question and Answer 09-036 (S.S.A. December 15, 2009)). However, neither Plaintiff nor Dr. Muendel ever allege that Plaintiff suffered specifically from migraine headaches, and the Foothills Hospital report contains evidence tending to rule out a "cluster migraine" diagnosis, AR 191. -27- 2. Severity of Plaintiff's Impair.ment At step-two, a Social Security claimant must show not just a medically determinable impairment, but a "severett one. 20 C.F.R. 404.1520 (a) (4) (ii). Plaintiff argues that the ALJ failed to apply the proper guidelines to determine the severity of Plaintiff s impairment. 1 Pl. s Mot. at 11-14. In actuality, the ALJ did not consider the 1 issue at all. AR 18-19. The record is rife with uncontradicted evidence indicating the extreme severity of Plaintiff, s symptoms. However, having concluded that Plaintiff was unable to demonstrate the existence of a medically determinable impairment, the ALJ mentioned the issue of severity only to say that Plaintiff had the burden of proving it. AR 18. C. Appropriateness of Remand Courts remand cases evidence. should 42 reviewing for further U.S. C. exercise determinations § its action 405 (g) . or by the Commissioner the taking He also argues discretion further developed that on and remand the already antique remand additional Plaintiff argues that this Commissioner solely for an award of benefits. Pl. 16. of because -28- the the Court case 1 S may to the Mot. at 14- record cannot be passage of time has limited the evidence available/ Pl. s Mot. at 15 1 and that the 1 record contains sufficient evidence to proceed with steps three/ four/ and five of the evaluation process. Lockard v. Apfel/ 175 F.Supp.2d 28 34 1 Id. (D.D.C. Finally 2001) 1 citing Plaintiff 1 notes that the Court should take account of the extraordinary number of years that have passed since Plaintiff filed his initial claim for DIB and place an extra weight in the scale in favor of awarding benefits. Pl. s Mot. at 15. 1 Defendant counters with long a factual of list determinations the Court would have to make in order to award benefits. Def. s Mot. 1 at 13-15. Defendant also argues that an award of benefits would exceed the scope of the Court Def. s Mot. 1 at 14 1 S review. ("This Court s role is limited to evaluating 1 'whether the ALJ s finding that she is not disabled is supported 1 by substantial evidence and was application of the relevant law. 1 reached based upon a " Craig v. Chater 1 correct 76 F.3d 585/ 589 (4th Cir. 1996)). The Court is very mindful of how truly unfortunate it is that Plaintiff 1 now over 80 years old 1 must continue to wait for resolution of his claim. The Court realizes that its own lengthy delay in deciding the Motions has only worsened the situation/ and apologizes to Mr. Gilliland -29- for its tardiness. However/ remand for consideration of steps two through five is required. The SSA' s not regulations instruct that disabled at any remaining steps. ALJ found step, 20 C.F.R. Plaintiff to be it if it finds a will §404.1520 not not continue (a) (4). disabled at claimant is to the In this case, the step on two, leaving undone any analysis of the remaining steps and necessary factual findings. IV. CONCLUSION For the foregoing reasons, Plaintiff's Motion for Judgment of Reversal is hereby granted, and this case is remanded to the Social Security Administration for speedy consideration; and Defendant's Motion for Judgment of Affirmance is hereby denied. ~~~ GlaySKeSer September 15, 2014 United States District Judge Copies to: attorneys on record via ECF -30-
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